Testimony Flashcards
Before a person is summonsed, verify…(4)
-whether they are ALLOWED to give evidence (eligible?)
-whether they are REQUIRED to give evidence
-whether they can REFUSE to give evidence (compellable?)
-what TYPE of witness they will be.
Eligible vs compellable
Once a witness enters the box and has been sworn…
A witness is eligible if they are lawfully ABLE to give evidence on behalf of both prosecution and defence.
A witness is compellable if they can be REQUIRED to give evidence against their will for both prosecution and defence.
…they are under a compellable obligation to answer all questions put to them.
How can a compellable witness be excused from tesitfying?
If a judge rules “just cause” under S 165 of Criminal Procedures Act
May be excused from answering certain questions due to a privilege.
Judge
Juror/Counsel
Defendant
Are they compellable?
-If acting as the judge in a proceeding, not eligible to give evidence.
-juror or counsel is ineligible unless judge gives permission. Juror would be discharged from the jury.
-defendant is not compellable. Can testify if acting as own counsel.
Jury Deliberations
Evidence about deliberations?
Exceptions, sufficiently compelling reasons?
Evidence MUST NOT be given about deliberations (promotes finality of verdicts).
Evidence that did not form part of the deliberation can be given about issues connected with the jury (competence, capacity, conduct that may disqualify).
In deciding whether to allow deliberation evidence, judge must weigh up:
-public interest in protecting the confidentiality of deliberations generally; and
-public interest in ensuring that justice is done.
Journalists’ sources?
S 68 - where a journalist promises not to disclose an informant’s identity, neither the journalist nor their employer is compellable re revealing the source.
A High Court Judge may overrule if satisfied that the public interest in identifying the source outweighs:
-any likely adverse effect on the informant or any other person.
-the public interest in the communication of facts and opinion to the public by the media and the ability of the media to access sources of facts.
S 69 - confidential information
S 69 allow the judge to prevent disclosure of confidential information after weighing up various factors to determine if the public interest justifies protection of the material.
S 121 - Corroboration
Which offences require it? (4)
121(1) - It is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated, except
(a) perjury
(b) false oaths
(c) false statements
(d) treason
Corroboration and judicial warnings
121(2)
122
S121(2) Subject to 121(1) and 122, it is not necessary for the Judge to-
(a) warn the jury that it is dangerous to act on uncorroborated evidence or to give a warning to the same/similar effect
(b) give a direction relating to the absence of corroboration.
122 - if the judge is of the opinion that uncorroborated evidence may be unreliable, he/she may warn the jury of the need for caution.
Open to the judge to warn/instruct jury to take special care when evidence is uncorroborated or where a witness may be of doubtful reliability.
S 125 - child complainants
In a criminal jury trial in which the complainant is a child, the judge MUST NOT give any warning to the jury about the absence of corroboration of the evidence of the complainant if the judge would not have given that kind of warning if the complainant had been an adult.
